BOARD DATE: 11 May 2017 DOCKET NUMBER: AR20160001507 BOARD VOTE: _____x____ __x_____ __x__ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 11 May 2017 DOCKET NUMBER: AR20160001507 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. issuing the applicant an Honorable Discharge Certificate, dated 20 December 1968, in lieu of the General Discharge Certificate of the same date now held by him; and b. issuing the applicant a new DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) reflecting the above corrections. ___________x______________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. BOARD DATE: 11 May 2017 DOCKET NUMBER: AR20160001507 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests an upgrade of his general discharge under honorable conditions to an honorable discharge. 2. The applicant states he feels his characterization of service is unjust. He was suffering with physical problems as a result of his training. He was suffering with severe pain in his back and feet. He would go on sick call with swollen feet, no testing would be performed, and he would be sent back to duty without a profile. 3. The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge). CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Regular Army on 15 August 1968. 3. The applicant received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 11 September 1968 for, without authority, absenting himself from his unit for the period 30 August to 6 September 1968. 4. On 26 November 1968, he underwent a psychiatric evaluation. Upon examination the psychiatrist recommended the applicant be separated from military service under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) based on a diagnosis of a severe schizoid personality disorder. It was noted: a. The condition did not require hospitalization, was not disabling, and presented no disqualifying mental or physical defect sufficient to warrant discharge under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). b. The applicant was mentally responsible, both to distinguish right from wrong and adhere to the right, and had the mental capacity to understand and participate in board proceedings. c. The condition represented a character and behavior disorder described under the provisions of Army Regulation 40-401 (Armed Forces Medical Diagnosis Nomenclature and Statistical Classification). This disorder was not medically disqualifying but should be considered in his further training or disposition by the unit commander. d. The applicant entered the military in August 1968 and since that time he had been absent without leave (AWOL) three times and was pending court-martial for disobeying a direct order. The applicant never learned to adjust to the demands of society, work, school, or the military and there was no reason to expect that he would do so. He was cleared for any decision deemed appropriate by the command. 5. Evidence shows the applicant was found guilty at a summary court-martial of two specifications of violating Article 86 of the UCMJ by being absent from his unit without authority for the periods 13 through 15 October 1968 and 16 October through 6 November 1968; and one specification of violating Article 92 of the UCMJ by failing to obey a lawful order. On 20 November 1968, the following sentence was adjudged: confinement to hard labor for one month and forfeiture of $63.00 pay for one month. On 3 December 1968, the sentence was approved and duly executed, but the execution of so much thereof as provides for confinement at hard labor for one month was suspended until 20 December 1968, at which time, unless sooner vacated, the suspended portion of the sentence will be remitted without further action. 6. On 10 December 1968, the applicant's unit commander notified him of pending separation action under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unsuitability. The applicant acknowledged notification of the separation action, consulted with legal counsel, waived consideration of his case by a board of officers, waived a personal appearance before a board of officers, and did not submit statements in his own behalf. He acknowledged that he understood that he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him. He further acknowledged that he understood that as a result of the issuance of an undesirable discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life. 7. On 12 December 1968, the applicant's intermediate commander recommended approval of the request with the issuance of a General Discharge Certificate. His battalion commander stated he had interviewed the applicant on two occasions and on both occasions the applicant presented an attitude of apathy, dejection and defeat. It was noted the applicant apparently enlisted under the urging of his mother in order to escape reform school. He displayed few interests and no definitive purpose in life. He viewed his experience in the Army as a disaster which he wished to escape by any means necessary. 8. On 12 December 1968, the separation authority directed the applicant be discharged under the provisions of Army Regulation 635-212 with issuance of a General Discharge Certificate. 9. On 20 December 1968, the applicant was discharged accordingly. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-212 with a separation program number of 264 for unsuitability, character and behavioral disorders, with issuance of a General Discharge Certificate. He completed 1 month and 28 days of total active service during this period with 70 days of time lost. 10. His service record does not indicate he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. REFERENCES: 1. Army Regulation 635-212, then in effect, set forth the policy and procedures for the administrative separation of enlisted personnel for unfitness and unsuitability. It provided for the discharge due to unsuitability of those individuals with character and behavior disorders and disorders of intelligence as determined by proper medical authority. When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record. 2. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) currently sets forth the basic authority for the separation of enlisted personnel. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. 3. Army Regulation 635-200 was revised on 1 December 1976 following settlement of a civil suit. Thereafter, the type of discharge and the character of service were to be determined solely by the individual's military record during the current enlistment. Further, any separation for unsuitability based on a personality disorder must include a diagnosis of a personality disorder made by a physician trained in psychiatry. In connection with these changes, a Department of the Army memorandum, dated 14 January 1977, and better known as the Brotzman Memorandum, was promulgated. It required retroactive application of revised policies, attitudes, and changes in reviewing applications for upgrades of discharges based on personality disorders. 4. A second memorandum, dated 8 February 1978, and better known as the Nelson Memorandum, expanded the review policy and specified that the presence of a personality disorder diagnosis would justify upgrade of a discharge to fully honorable except in cases where there are "clear and demonstrable reasons" why a fully honorable discharge should not be given. Conviction by general court-martial or by more than one special court-martial was determined to be "clear and demonstrable reasons" which would justify a less than fully honorable discharge. DISCUSSION: 1. The applicant's administrative separation under the provisions of Army Regulation 635-212 was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights. 2. The applicant's service was characterized by his conviction by a summary court-martial in addition to NJP under the provisions of Article 15 of the UCMJ. The evidence shows he was routinely AWOL, and disregarded military authority. As a result, his immediate commander initiated separation action against him for unsuitability under Army Regulation 635-212. 3. His psychiatric evaluation shows he was diagnosed with a severe schizoid personality disorder and he was discharged for unsuitability due to this character and behavior disorder with a general discharge. His administrative separation on 20 December 1968, was accomplished in accordance with regulations then in effect. 4. However, subsequent to the applicant's discharge the regulation was changed following settlement of a civil suit. In view of the change, the general discharge issued to the applicant at the time of separation is inconsistent with the standards for discharge for unsuitability – character and behavior disorder (now known as personality disorder) – which subsequently became effective. Since these new standards retroactively authorized an honorable discharge in cases where a Soldier was diagnosed with a personality disorder and were separated for unsuitability, it would appear the applicant is entitled to receive an honorable discharge consistent with these standards. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001507 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001507 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2